Sec.302 r/w 149 or sec.304 part 1 r/w 149 or sec.304 part 2 r/w sec.149 of I.P.C. - Land disputes - civil proceedings pending - one party raising fencing and other dismantling - sudden fight sparked - resulted in death of one person and injuries to other victim - Lower court sentenced under sec.302 r/w sec.149 I.P.C.- High court modified it and sentenced them under sec.304 part 2 r/w sec.149 of I.P.C. for 5 years - Apex court convicted them under sec. 304 part 1 r/w sec.149 for 7 years and allow the appeals of state partly =
Thus the evidence shows that the accused party
was desirous to get the subject land to themselves and were
taking legal steps to achieve it.
On coming to know of the
fencing put by Shivji Ram and his brothers they were annoyed
and went there to remove the fencing.
While they were
dismantling the fencing, Shivji Ram and his brothers came
there and objected to it by saying that they have obtained
Patta and a sudden quarrel erupted.
17. A fight suddenly takes place for which both parties are
more or less to be blamed and it is a combat whether with or
without weapons.
It may be that one of them starts it, but
if the other had not aggravated it by his own conduct, it
would not have taken the serious turn it did.
Heat of
passion requires that there must be no time for the passions
to cool down and in this case the parties have worked
themselves into a fury on account of the verbal altercation
in the beginning.
Out of the 9 injuries, only injury no.1
was held to be of grievous nature, which was sufficient in
the ordinary course of nature to cause death of the deceased.
The assaults were made at random.
Even the previous
altercations were verbal and not physical. The earlier
disputes over land do not appear to have assumed the
characteristics of physical combat.
This goes to show that
in the heat of passion upon a sudden quarrel the accused
persons had caused injuries on the deceased. That being so
the Exception 4 to Section 300 IPC is applicable. The fact
situation bears great similarity to that in Ghapoo Yadav &
Ors. vs. State of M.P. (2003) 3 SCC 528.
18. Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above the
conclusion is irresistible that the death was caused by the
acts of the accused done with the intention of causing such
bodily injury as is likely to cause death and therefore the
offence would squarely come within the first part of Section
304 IPC and the appellants would be liable to be convicted
for the said offence. The conviction of the
appellants/accused under Section 304 Part II read with
Section 149 IPC by the High Court is liable to be set aside.
19. We are of the considered view that imposition of 7
years rigorous imprisonment on each of the appellants for the
conviction under Section 304 Part I IPC would meet the ends of
justice. We sustain the other conviction and sentences
imposed on the appellants. We are also of the view that the
appellants are not entitled for release on probation.
20. In the result Criminal Appeal No.1990 of 2010, 1991
of 2010 and 1992 of 2010 preferred by the State of Rajasthan
against the accused persons Nanak Ram, Mohan Ram and Surja Ram
are partly allowed and their conviction for the offence under
Section 304 Part II IPC read with Section 149 IPC and the
sentences of 5 years rigorous imprisonment each are set aside
and instead they are convicted for the offence under Section
304 Part I read with Section 149 IPC and sentenced to undergo
seven years rigorous imprisonment each. All other convictions
and sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011
are dismissed.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41258
T.S. THAKUR, C. NAGAPPAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1985 OF 2010
With
Crl.A.No.1990/2010, Crl.A.No.1991/2010, Crl.A.No.1992/2010 and
Crl.A.No.342/2011
Nanak Ram .. Appellant(s)
versus
State of Rajasthan .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. This judgment shall dispose of three appeals in Criminal
appeal Nos.1985 of 2010 filed by the appellant Nanak
Ram/Accused and Criminal Appeal No.342 of 2011 filed by
appellants/Accused Mohan Ram and Surja Ram against their
conviction and sentence, and Criminal Appeal Nos. 1991 of
2010, 1990 of 2010 and Criminal Appeal No.1992 of 2010 filed
by the State of Rajasthan for the enhancement of the sentence
against the above mentioned accused, respectively.
2. The case of the prosecution in brief is as follows : PW
7 Shera Ram is the younger brother of deceased Shivji Ram and
they had obtained land from Gram Panchayat towards the
western side of the village and obtained Pattas for the said
land. Accused Bhera Ram and accused Chuna Ram are real
brothers while accused Surja Ram and accused Mohan Ram are
sons of accused Sadula Ram. Accused Bhera Ram and Sadula Ram
told Shivji Ram and Shera Ram that they will not allow them
to take the land and will snatch it from them. Two months
prior to occurrence Shivji Ram and Shera Ram erected fencing
around their land whereupon the accused Bhera Ram and other
accused were seriously annoyed over the same. On the
occurrence day i.e. on 29.5.1983 at 10.30 a.m. Shivji Ram
and both his younger brothers were repairing/re-erecting the
fencing in their land, accused persons Bhera Ram, Sadula Ram
and his sons Mohan Ram and Surja Ram, Gordhan Ram, Nanak Ram
and Chuna Ram, all duly armed entered into Bara from south
side and started dismantling the fence. Shivji Ram and his
brothers questioned the same by saying that they have
obtained Patta from the Panchayat. Thereupon Bhera Ram and
Surja Ram simultaneously inflicted Barchhi blow on the head
of Shivji Ram, as a result of which he fell down and all the
accused attacked him with their weapons. Shera Ram
intervened and accused Mohan Ram inflicted Barchhi blow which
landed on the left side of his head and accused Chuna Ram
inflicted the jei blow on his right leg. Then all the
accused started beating whereupon his sister Dhuri came
running and fell upon Shera Ram in order to protect him. PW
11 Balu Ram and PW 2 Mangi Lal who were present at the
occurrence place were threatened by the accused and they got
frieghtened and saw the occurrence standing by the side of
the road. After that all the accused went away. Shivji Ram
died on the spot.
3. Some unknown person gave a telephonic information about
the occurrence to the Police Station Nokha on 29.5.1983 and
after making Exh.P-54 entry in the Roznamcha PW 13 Attar Ali
Khan went to the occurrence place and found Shivji Ram lying
dead and Shera Ram with injuries and he recorded Exh.P9
statement of Shera Ram, sent him to Nokha Hospital for
treatment. He forwarded Exh.P9 statement to the Police
Station for registering the case and Exh. P55 FIR came to be
registered. He conducted inquest on the body of Shivji Ram
and prepared Exh.P5 ‘inquest report’. He prepared Exh.P3
site plan and Exh.P45 site inspection note. He seized blood
stained earth and ordinary earth under Exh. P33 and also
seized jeis used by the accused Chuna Ram, Nanak Ram from the
occurrence place and the blood stained wooden jei under Exh.
P34. He also seized the footwear of Shivji Ram viz. Exh.P35
and sent the body for post mortem.
4. Dr. Moti Lal Mishra (PW 9) conducted the autopsy on the
body of Shivji Ram and found the following 9 injuries:
i) An incised wound of 6-½” x ½” and deep upto brain on the
head,
ii) a punctured wound of 1 x ½ x ½ cm on the left knee joint
deep to the bone;
iii) multiple contusion of 1 cm each incised on the left elbow
joint;
iv) an abrasion 1 x ½ cm on the left ring finger dorsally;
v) a contusion of 4 x 2 cm on the lower half of the left leg
anteriorly;
vi) swelling 2 x 2 cm on the left leg near the 5th injury;
vii) a contusion of 1 x 1 cm on the right thigh
viii) an abrasion 3 x 1 cm on the right knee joint near the
ankle joint; and
ix) an abrasion on the right middle finger dorsally.
He issued Exh. P 33 Post Mortem report by expressing opinion
that the death has occurred due to destruction of all the
elements of brain and shock due to excessive bleeding.
5. PW 9 Dr. Moti Lal Mishra examined Shera Ram in the Nokha
hospital and found the following 11 injuries on him:
i) One crushed wound of 4 x 3 cm bone deep on lower half of
the left leg interiorly;
ii) One crushed wound of 1cm x .5x.5 cm on middle 1/3 of the
right leg laterally;
iii) Contusion of 15 x 1.5 cm on the lower portion of glutal
region;
iv) An abrasion 3 x ½ cm on the right scapula;
v) One crushed wound of 6 x 1 x 1.5 cm on the left side of the
head, 7 cm above the left ear,
vi) An abrasion 1cm x 1 cm on the back side of the head;
vii) Swelling 4 x 3 cm on the right palm;
viii) An abrasion 1 x ½ cm on the left thumb laterally;
ix) A contusion of 6 x 1 cm on the middle half of the right
thigh medially;
x) A contusion of 3 x 1 cm on the right thigh 2 cm above the
ninth injury and
xi) Contusion two in number, one of 4 x 1 cm and another of 3 x
1 cm on the upper half of the right glutal.
He opined that all the above injuries were simple in nature
and issued Exh. P 32 Injury Report.
6. After completing investigation challan was filed in the
Court of Munsif-cum-Judicial Magistrate Nokha against all the
accused persons. Accused Nanak Ram was absconding. The other
accused persons namely Bhera Ram, Sadula Ram, Chuna Ram,
Surja Ram, Mohan Ram and Gordhan Ram were tried in Sessions
Case No.63 of1983 for the alleged offences under Section 302,
307, 323 and 324 all read with Section 149 IPC and also the
offence under Section 147 and 148 IPC. The prosecution
examined 13 witnesses and tendered in evidence 59 documents.
The learned Sessions Judge convicted accused Bhera Ram and
Surja Ram for the offences under Section 302 read with
section 149 IPC and sentenced them each to undergo
imprisonment for life. He also convicted accused persons
Sadula Ram, Mohan Ram and Gordhan Ram for the offences under
Section 304 Part II read with Section 149 IPC and sentenced
them each to undergo five years rigorous imprisonment.
Besides he convicted accused persons namely Surja Ram, Bhera
Ram, Gordhan Ram and Mohan Ram for the offence under Section
148 IPC and sentenced them each to undergo six months
rigorous imprisonment He also convicted Sadula Ram for the
offence under Section 147 IPC and sentenced him to undergo 3
months rigorous imprisonment. In addition he convicted
accused persons Surja Ram, Bhera Ram, Mohan Ram, Sadula Ram
and Gordhan Ram for the offence under Sections 323 and 324
read with Section 149 IPC and sentenced them each to undergo
6 months rigorous imprisonment and directed all the sentences
to run concurrently. However, he acquitted accused Chuna Ram
of the charges.
7. All the five convicted accused persons preferred appeal
in Appeal No.428 of 1984 on the file of High Court of
Judicature of Rajasthan, at Jodhpur, challenging their
conviction and sentences. The State of Rajasthan challenged
the complete acquittal of Chuna Ram and the acquittal of
accused persons Sadula Ram, Mohan Ram and Gordhan Ram for the
offences under Section 302 read with 149 IPC , in Appeal
No.106 of 1985. During the pendency of the appeals four
accused persons namely Sadula Ram, Gordhan Ram, Bhera Ram and
Chuna Ram died, with the result the appeal preferred against
them in Appeal No. 106 of 1985 abated and the said appeal
continued only as against the accused Mohan Ram. Like wise
Appeal No.428 of 1984 preferred by the accused persons Bhera
Ram, Sadula Ram, Gordhan Ram also stood abated and it
continued on behalf of accused Surja Ram and Mohan Ram only.
8. The High Court of Rajasthan partly allowed the appeal in
Appeal No.428 of 1984 filed by the accused Surja Ram by
setting aside his conviction for the offence under Section
302 read with Section 149 IPC and instead convicted him under
Section 304 Part II read with Section 149 IPC and sentenced
him to undergo 5 years rigorous imprisonment and the other
conviction and sentences imposed on him were maintained. At
the same time it dismissed the appeal in Appeal No.428 of
1984 preferred by accused Mohan Ram, by confirming the
conviction and sentence imposed on him. The High Court also
dismissed the Appeal No.106 of 1985 preferred by the State of
Rajasthan against accused Mohan Ram.
9. The accused Nanak Ram on being apprehended was tried
in Sessions Case No.24 of 1985 and the learned Sessions
Judge, Bikaner convicted him for the offence under Section
302 read with Section 149 IPC and sentenced him to undergo
life imprisonment. He also convicted him for the offence
under Section 148 IPC and sentenced him to undergo six months
rigorous imprisonment and further convicted him for the
offence under Section 324 read with Section 149 IPC and
sentenced him to undergo one year rigorous imprisonment and
in addition he convicted him for the offence under Section
323 read with Section 149 IPC and sentenced him to undergo
three months rigorous imprisonment and further he convicted
him for the offence under Section 447 IPC and sentenced him
to undergo two months rigorous imprisonment and directed all
sentences to run concurrently. Challenging the conviction
and sentence Nanak Ram preferred appeal in Criminal Appeal
No.314 of 1990 on the file of High Court of Judicature at
Rajasthan at Jodhpur and the High Court partly allowed the
appeal by setting aside the conviction under Section 302
read with Section 149 IPC and instead convicted him for
offence under Section 304 Part II read with Section 149 IPC
and sentenced him to undergo five years rigorous imprisonment
and maintained all the other convictions and sentences
imposed by the Sessions Court.
10. Challenging their convictions and sentences imposed by
the High Court on them accused Nanak Ram, Mohan Ram and Surja
Ram preferred Criminal Appeal referred to above and the State
of Rajasthan also filed appeals against the above accused
seeking for enhancement of the sentences imposed on them.
All these appeals were heard together and are being disposed
of by this common judgment.
11. Mr. Mahabir Singh, learned senior counsel appearing for
the appellants contended that the occurrence took place about
30 years ago and accused persons went to the occurrence place
only to remove the fence put up by Shivji Ram and his
brothers and when it was resisted a free fight followed which
was accidental and there was no intention to kill and only
one blow on the head of Shivji Ram was fatal and the other
injuries were only minor injuries, and the Courts below have
failed to appreciate that there are material improvements and
infirmities in the prosecution case and the presence of eye
witnesses is highly doubtful and the conviction of appellants
is wholly unwarranted and liable to be set aside. The
alternative plea of the learned counsel for the appellants
was that the appellants have undergone three years of their
sentence and they be granted the benefit of probation under
the provision of Section 360 of Code of Criminal Procedure
as well as under Section 4 of the Probation of Offenders Act,
1958, and in support of the submission he relied on the
decision of this Court in State of Karnataka vs. Muddappa
(1999) 5 SCC 732 and Eliamma and Another vs. State of
Karnataka (2009) 11 SCC 42.
12. Per contra Ms. Sonia Mathur, learned counsel appearing
for the State of Rajasthan strenuously contended that Shivji
Ram and his brothers are the Patta holders of the land and
lease deeds have been executed by the Panchayat in their
favour and the accused persons having failed in their legal
proceedings had decided to attack the brothers and take
forcible possession of the land and in pursuance of the said
common object all the seven accused persons duly armed
forcibly entered the land and inflicted injuries on Shivji
Ram with barchhi and jei resulting in instantaneous death and
also inflicted injuries on his younger brother Shera Ram and
the alteration made by the High Court on the conviction from
Section 302 IPC read with Section 149 IPC to one under
Section 304 Part II IPC read with Section 149 IPC is
erroneous and legally unsustainable. In support of her
submissions she relied on the decisions of this Court in
Mahesh Balmiki alias Munna vs. State of M.P. (2000)1 SCC 319
and Arun Nivalaji More vs. State of Maharashtra (2006) 12 SCC
613.
13. The prosecution has examined PW 7 Shera Ram, PW 2, Mandi
Lal, PW6 Dhuri and PW11 Balu Ram as having witnessed the
occurrence. PW7 Shera Ram and PW 11 Balu Ram are the younger
brothers of deceased Shivji Ram and PW6 Dhuri is their
sister. PW 7 Shera Ram was also injured during the
occurrence and according to him on the occurrence day namely
on 29.5.1983 at 10.30 a.m. Shivji Ram and both his brothers
were repairing/re-erecting the fencing in their Patta Land
and accused persons Bhera Ram, Sadula Ram and his sons Mohan
Ram and Surja Ram, Gordhan Ram, Nanak Ram and Chuna Ram
armed with weapons entered into Bara from south side and
started dismantling the fence and they questioned the same by
saying that they have obtained Patta from Panchayat and at
that time Bhera Ram and Surja Ram inflicted Barchhi blow on
the head of Shivji Ram as a result of which he fell down and
all the accused attacked him with their weapons and when he
intervened accused Mohan Ram inflicted barchhi blow on the
left side of his head and accused Chuna Ram inflicted jei
blow on his right leg and other accused also started beating
him whereupon his sister Dhuri came running and fell upon him
in order to protect him and the accused persons also
threatened PW 11 Balu Ram and PW2 Mangi Lal and being
frightened they stood by the side of the road and saw the
occurrence and Shivji Ram died on the spot. PW7 Shera Ram
sustained as many as 11 injuries on his person as a result of
the attack made by all the accused on him at the time of
occurrence. PW 11 Balu Ram was involved in the fencing of the
land along with his brothers and his presence in the
occurrence place cannot doubted. PW 2 Mangi Lal happened to
be with Shivji Ram in his land and he has witnessed the
occurrence. He is an independent witness. On seeing the
attack made by the accused on her brothers PW 6 Dhuri came
running and tried to protect Shera Ram by falling upon him.
The testimonies of PW2 Mangi Lal, PW6 Dhuri, PW11 Balu Ram
are natural cogent and in all material particulars
corroborated the testimony of PW7 Shera Ram. Accepting their
testimonies it is clear that during the occurrence all the
seven accused as members of unlawful assembly have inflicted
injuries with their weapons on deceased Shivji Ram and PW 7
Shera Ram.
14. Shivji Ram died of homicidal violence is established by
the medical evidence adduced in the case. PW9 Dr. Moti Lal
Mishra conducted autopsy on the body of Shivji Ram and found
on the head an incised wound of 6½” x ½” deep upto brain and
on internal examination the destruction of the elements of
the brain. He also found eight other injuries on the other
parts of the body. He issued Exh. P33 post mortem report and
expressed opinion that the death has occurred due to
destruction of the elements of brain and shock due to
excessive bleeding. In the oral testimony PW9 Dr. Moti Lal
Mishra has categorically stated that injury No.1 found on the
head was itself sufficient to cause death. There is no doubt
that Shivji Ram died of injuries sustained during the
occurrence. It is further relevant to note that PW9 Dr. Moti
Lal Mishra examined PW7 Shera Ram immediately after the
occurrence in Nokha hospital and found 11 injuries on him.
Ex.P.32 is the injury report issued by him mentioning the
injuries. According to him all the injuries are simple in
nature.
15. Telephonic information about the occurrence was given to
Nokha Police Station by some unknown person on 29.5.1983
itself and PW13 Attar Ali Khan after making Exh.P54 entry in
the Roznamcha, immediately went to the occurrence place and
found Shivji Ram lying dead and Shera Ram with injuries. He
recorded Exh.P9 statement of Shera Ram and sent him to Nokha
hospital for treatment and forwarded the statement to the
Police Station for registering the case Exh.P55 is the First
Information Report. He also seized jeis used by the accused
from the occurrence place under Exh.P34 Mazhar. There is no
delay in registering case and there is no flaw in the
investigation.
16. It is true that the accused party had land dispute with
the victim party. The Collector ordered conversion of
subject land into abadi and on the applications made by
Shivji Ram and his two brothers, Pattas were issued as
evident from P12, P16, P17, P20, P21 and P24. Accused Bhera
Ram preferred appeals against the grant of Patta to Panchayat
Samiti at the first instance and they came to be dismissed
and the revision preferred before the Collector was pending.
PW8 Sarpanch Dhura Ram and PW5 record keeper Hanuman Das have
stated so. Thus the evidence shows that the accused party
was desirous to get the subject land to themselves and were
taking legal steps to achieve it. On coming to know of the
fencing put by Shivji Ram and his brothers they were annoyed
and went there to remove the fencing. While they were
dismantling the fencing, Shivji Ram and his brothers came
there and objected to it by saying that they have obtained
Patta and a sudden quarrel erupted.
17. A fight suddenly takes place for which both parties are
more or less to be blamed and it is a combat whether with or
without weapons. It may be that one of them starts it, but
if the other had not aggravated it by his own conduct, it
would not have taken the serious turn it did. Heat of
passion requires that there must be no time for the passions
to cool down and in this case the parties have worked
themselves into a fury on account of the verbal altercation
in the beginning. Out of the 9 injuries, only injury no.1
was held to be of grievous nature, which was sufficient in
the ordinary course of nature to cause death of the deceased.
The assaults were made at random. Even the previous
altercations were verbal and not physical. The earlier
disputes over land do not appear to have assumed the
characteristics of physical combat. This goes to show that
in the heat of passion upon a sudden quarrel the accused
persons had caused injuries on the deceased. That being so
the Exception 4 to Section 300 IPC is applicable. The fact
situation bears great similarity to that in Ghapoo Yadav &
Ors. vs. State of M.P. (2003) 3 SCC 528.
18. Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above the
conclusion is irresistible that the death was caused by the
acts of the accused done with the intention of causing such
bodily injury as is likely to cause death and therefore the
offence would squarely come within the first part of Section
304 IPC and the appellants would be liable to be convicted
for the said offence. The conviction of the
appellants/accused under Section 304 Part II read with
Section 149 IPC by the High Court is liable to be set aside.
19. We are of the considered view that imposition of 7
years rigorous imprisonment on each of the appellants for the
conviction under Section 304 Part I IPC would meet the ends of
justice. We sustain the other conviction and sentences
imposed on the appellants. We are also of the view that the
appellants are not entitled for release on probation.
20. In the result Criminal Appeal No.1990 of 2010, 1991
of 2010 and 1992 of 2010 preferred by the State of Rajasthan
against the accused persons Nanak Ram, Mohan Ram and Surja Ram
are partly allowed and their conviction for the offence under
Section 304 Part II IPC read with Section 149 IPC and the
sentences of 5 years rigorous imprisonment each are set aside
and instead they are convicted for the offence under Section
304 Part I read with Section 149 IPC and sentenced to undergo
seven years rigorous imprisonment each. All other convictions
and sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011
are dismissed.
…………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
February 26, 2014.
Thus the evidence shows that the accused party
was desirous to get the subject land to themselves and were
taking legal steps to achieve it.
On coming to know of the
fencing put by Shivji Ram and his brothers they were annoyed
and went there to remove the fencing.
While they were
dismantling the fencing, Shivji Ram and his brothers came
there and objected to it by saying that they have obtained
Patta and a sudden quarrel erupted.
17. A fight suddenly takes place for which both parties are
more or less to be blamed and it is a combat whether with or
without weapons.
It may be that one of them starts it, but
if the other had not aggravated it by his own conduct, it
would not have taken the serious turn it did.
Heat of
passion requires that there must be no time for the passions
to cool down and in this case the parties have worked
themselves into a fury on account of the verbal altercation
in the beginning.
Out of the 9 injuries, only injury no.1
was held to be of grievous nature, which was sufficient in
the ordinary course of nature to cause death of the deceased.
The assaults were made at random.
Even the previous
altercations were verbal and not physical. The earlier
disputes over land do not appear to have assumed the
characteristics of physical combat.
This goes to show that
in the heat of passion upon a sudden quarrel the accused
persons had caused injuries on the deceased. That being so
the Exception 4 to Section 300 IPC is applicable. The fact
situation bears great similarity to that in Ghapoo Yadav &
Ors. vs. State of M.P. (2003) 3 SCC 528.
18. Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above the
conclusion is irresistible that the death was caused by the
acts of the accused done with the intention of causing such
bodily injury as is likely to cause death and therefore the
offence would squarely come within the first part of Section
304 IPC and the appellants would be liable to be convicted
for the said offence. The conviction of the
appellants/accused under Section 304 Part II read with
Section 149 IPC by the High Court is liable to be set aside.
19. We are of the considered view that imposition of 7
years rigorous imprisonment on each of the appellants for the
conviction under Section 304 Part I IPC would meet the ends of
justice. We sustain the other conviction and sentences
imposed on the appellants. We are also of the view that the
appellants are not entitled for release on probation.
20. In the result Criminal Appeal No.1990 of 2010, 1991
of 2010 and 1992 of 2010 preferred by the State of Rajasthan
against the accused persons Nanak Ram, Mohan Ram and Surja Ram
are partly allowed and their conviction for the offence under
Section 304 Part II IPC read with Section 149 IPC and the
sentences of 5 years rigorous imprisonment each are set aside
and instead they are convicted for the offence under Section
304 Part I read with Section 149 IPC and sentenced to undergo
seven years rigorous imprisonment each. All other convictions
and sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011
are dismissed.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41258
T.S. THAKUR, C. NAGAPPAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1985 OF 2010
With
Crl.A.No.1990/2010, Crl.A.No.1991/2010, Crl.A.No.1992/2010 and
Crl.A.No.342/2011
Nanak Ram .. Appellant(s)
versus
State of Rajasthan .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. This judgment shall dispose of three appeals in Criminal
appeal Nos.1985 of 2010 filed by the appellant Nanak
Ram/Accused and Criminal Appeal No.342 of 2011 filed by
appellants/Accused Mohan Ram and Surja Ram against their
conviction and sentence, and Criminal Appeal Nos. 1991 of
2010, 1990 of 2010 and Criminal Appeal No.1992 of 2010 filed
by the State of Rajasthan for the enhancement of the sentence
against the above mentioned accused, respectively.
2. The case of the prosecution in brief is as follows : PW
7 Shera Ram is the younger brother of deceased Shivji Ram and
they had obtained land from Gram Panchayat towards the
western side of the village and obtained Pattas for the said
land. Accused Bhera Ram and accused Chuna Ram are real
brothers while accused Surja Ram and accused Mohan Ram are
sons of accused Sadula Ram. Accused Bhera Ram and Sadula Ram
told Shivji Ram and Shera Ram that they will not allow them
to take the land and will snatch it from them. Two months
prior to occurrence Shivji Ram and Shera Ram erected fencing
around their land whereupon the accused Bhera Ram and other
accused were seriously annoyed over the same. On the
occurrence day i.e. on 29.5.1983 at 10.30 a.m. Shivji Ram
and both his younger brothers were repairing/re-erecting the
fencing in their land, accused persons Bhera Ram, Sadula Ram
and his sons Mohan Ram and Surja Ram, Gordhan Ram, Nanak Ram
and Chuna Ram, all duly armed entered into Bara from south
side and started dismantling the fence. Shivji Ram and his
brothers questioned the same by saying that they have
obtained Patta from the Panchayat. Thereupon Bhera Ram and
Surja Ram simultaneously inflicted Barchhi blow on the head
of Shivji Ram, as a result of which he fell down and all the
accused attacked him with their weapons. Shera Ram
intervened and accused Mohan Ram inflicted Barchhi blow which
landed on the left side of his head and accused Chuna Ram
inflicted the jei blow on his right leg. Then all the
accused started beating whereupon his sister Dhuri came
running and fell upon Shera Ram in order to protect him. PW
11 Balu Ram and PW 2 Mangi Lal who were present at the
occurrence place were threatened by the accused and they got
frieghtened and saw the occurrence standing by the side of
the road. After that all the accused went away. Shivji Ram
died on the spot.
3. Some unknown person gave a telephonic information about
the occurrence to the Police Station Nokha on 29.5.1983 and
after making Exh.P-54 entry in the Roznamcha PW 13 Attar Ali
Khan went to the occurrence place and found Shivji Ram lying
dead and Shera Ram with injuries and he recorded Exh.P9
statement of Shera Ram, sent him to Nokha Hospital for
treatment. He forwarded Exh.P9 statement to the Police
Station for registering the case and Exh. P55 FIR came to be
registered. He conducted inquest on the body of Shivji Ram
and prepared Exh.P5 ‘inquest report’. He prepared Exh.P3
site plan and Exh.P45 site inspection note. He seized blood
stained earth and ordinary earth under Exh. P33 and also
seized jeis used by the accused Chuna Ram, Nanak Ram from the
occurrence place and the blood stained wooden jei under Exh.
P34. He also seized the footwear of Shivji Ram viz. Exh.P35
and sent the body for post mortem.
4. Dr. Moti Lal Mishra (PW 9) conducted the autopsy on the
body of Shivji Ram and found the following 9 injuries:
i) An incised wound of 6-½” x ½” and deep upto brain on the
head,
ii) a punctured wound of 1 x ½ x ½ cm on the left knee joint
deep to the bone;
iii) multiple contusion of 1 cm each incised on the left elbow
joint;
iv) an abrasion 1 x ½ cm on the left ring finger dorsally;
v) a contusion of 4 x 2 cm on the lower half of the left leg
anteriorly;
vi) swelling 2 x 2 cm on the left leg near the 5th injury;
vii) a contusion of 1 x 1 cm on the right thigh
viii) an abrasion 3 x 1 cm on the right knee joint near the
ankle joint; and
ix) an abrasion on the right middle finger dorsally.
He issued Exh. P 33 Post Mortem report by expressing opinion
that the death has occurred due to destruction of all the
elements of brain and shock due to excessive bleeding.
5. PW 9 Dr. Moti Lal Mishra examined Shera Ram in the Nokha
hospital and found the following 11 injuries on him:
i) One crushed wound of 4 x 3 cm bone deep on lower half of
the left leg interiorly;
ii) One crushed wound of 1cm x .5x.5 cm on middle 1/3 of the
right leg laterally;
iii) Contusion of 15 x 1.5 cm on the lower portion of glutal
region;
iv) An abrasion 3 x ½ cm on the right scapula;
v) One crushed wound of 6 x 1 x 1.5 cm on the left side of the
head, 7 cm above the left ear,
vi) An abrasion 1cm x 1 cm on the back side of the head;
vii) Swelling 4 x 3 cm on the right palm;
viii) An abrasion 1 x ½ cm on the left thumb laterally;
ix) A contusion of 6 x 1 cm on the middle half of the right
thigh medially;
x) A contusion of 3 x 1 cm on the right thigh 2 cm above the
ninth injury and
xi) Contusion two in number, one of 4 x 1 cm and another of 3 x
1 cm on the upper half of the right glutal.
He opined that all the above injuries were simple in nature
and issued Exh. P 32 Injury Report.
6. After completing investigation challan was filed in the
Court of Munsif-cum-Judicial Magistrate Nokha against all the
accused persons. Accused Nanak Ram was absconding. The other
accused persons namely Bhera Ram, Sadula Ram, Chuna Ram,
Surja Ram, Mohan Ram and Gordhan Ram were tried in Sessions
Case No.63 of1983 for the alleged offences under Section 302,
307, 323 and 324 all read with Section 149 IPC and also the
offence under Section 147 and 148 IPC. The prosecution
examined 13 witnesses and tendered in evidence 59 documents.
The learned Sessions Judge convicted accused Bhera Ram and
Surja Ram for the offences under Section 302 read with
section 149 IPC and sentenced them each to undergo
imprisonment for life. He also convicted accused persons
Sadula Ram, Mohan Ram and Gordhan Ram for the offences under
Section 304 Part II read with Section 149 IPC and sentenced
them each to undergo five years rigorous imprisonment.
Besides he convicted accused persons namely Surja Ram, Bhera
Ram, Gordhan Ram and Mohan Ram for the offence under Section
148 IPC and sentenced them each to undergo six months
rigorous imprisonment He also convicted Sadula Ram for the
offence under Section 147 IPC and sentenced him to undergo 3
months rigorous imprisonment. In addition he convicted
accused persons Surja Ram, Bhera Ram, Mohan Ram, Sadula Ram
and Gordhan Ram for the offence under Sections 323 and 324
read with Section 149 IPC and sentenced them each to undergo
6 months rigorous imprisonment and directed all the sentences
to run concurrently. However, he acquitted accused Chuna Ram
of the charges.
7. All the five convicted accused persons preferred appeal
in Appeal No.428 of 1984 on the file of High Court of
Judicature of Rajasthan, at Jodhpur, challenging their
conviction and sentences. The State of Rajasthan challenged
the complete acquittal of Chuna Ram and the acquittal of
accused persons Sadula Ram, Mohan Ram and Gordhan Ram for the
offences under Section 302 read with 149 IPC , in Appeal
No.106 of 1985. During the pendency of the appeals four
accused persons namely Sadula Ram, Gordhan Ram, Bhera Ram and
Chuna Ram died, with the result the appeal preferred against
them in Appeal No. 106 of 1985 abated and the said appeal
continued only as against the accused Mohan Ram. Like wise
Appeal No.428 of 1984 preferred by the accused persons Bhera
Ram, Sadula Ram, Gordhan Ram also stood abated and it
continued on behalf of accused Surja Ram and Mohan Ram only.
8. The High Court of Rajasthan partly allowed the appeal in
Appeal No.428 of 1984 filed by the accused Surja Ram by
setting aside his conviction for the offence under Section
302 read with Section 149 IPC and instead convicted him under
Section 304 Part II read with Section 149 IPC and sentenced
him to undergo 5 years rigorous imprisonment and the other
conviction and sentences imposed on him were maintained. At
the same time it dismissed the appeal in Appeal No.428 of
1984 preferred by accused Mohan Ram, by confirming the
conviction and sentence imposed on him. The High Court also
dismissed the Appeal No.106 of 1985 preferred by the State of
Rajasthan against accused Mohan Ram.
9. The accused Nanak Ram on being apprehended was tried
in Sessions Case No.24 of 1985 and the learned Sessions
Judge, Bikaner convicted him for the offence under Section
302 read with Section 149 IPC and sentenced him to undergo
life imprisonment. He also convicted him for the offence
under Section 148 IPC and sentenced him to undergo six months
rigorous imprisonment and further convicted him for the
offence under Section 324 read with Section 149 IPC and
sentenced him to undergo one year rigorous imprisonment and
in addition he convicted him for the offence under Section
323 read with Section 149 IPC and sentenced him to undergo
three months rigorous imprisonment and further he convicted
him for the offence under Section 447 IPC and sentenced him
to undergo two months rigorous imprisonment and directed all
sentences to run concurrently. Challenging the conviction
and sentence Nanak Ram preferred appeal in Criminal Appeal
No.314 of 1990 on the file of High Court of Judicature at
Rajasthan at Jodhpur and the High Court partly allowed the
appeal by setting aside the conviction under Section 302
read with Section 149 IPC and instead convicted him for
offence under Section 304 Part II read with Section 149 IPC
and sentenced him to undergo five years rigorous imprisonment
and maintained all the other convictions and sentences
imposed by the Sessions Court.
10. Challenging their convictions and sentences imposed by
the High Court on them accused Nanak Ram, Mohan Ram and Surja
Ram preferred Criminal Appeal referred to above and the State
of Rajasthan also filed appeals against the above accused
seeking for enhancement of the sentences imposed on them.
All these appeals were heard together and are being disposed
of by this common judgment.
11. Mr. Mahabir Singh, learned senior counsel appearing for
the appellants contended that the occurrence took place about
30 years ago and accused persons went to the occurrence place
only to remove the fence put up by Shivji Ram and his
brothers and when it was resisted a free fight followed which
was accidental and there was no intention to kill and only
one blow on the head of Shivji Ram was fatal and the other
injuries were only minor injuries, and the Courts below have
failed to appreciate that there are material improvements and
infirmities in the prosecution case and the presence of eye
witnesses is highly doubtful and the conviction of appellants
is wholly unwarranted and liable to be set aside. The
alternative plea of the learned counsel for the appellants
was that the appellants have undergone three years of their
sentence and they be granted the benefit of probation under
the provision of Section 360 of Code of Criminal Procedure
as well as under Section 4 of the Probation of Offenders Act,
1958, and in support of the submission he relied on the
decision of this Court in State of Karnataka vs. Muddappa
(1999) 5 SCC 732 and Eliamma and Another vs. State of
Karnataka (2009) 11 SCC 42.
12. Per contra Ms. Sonia Mathur, learned counsel appearing
for the State of Rajasthan strenuously contended that Shivji
Ram and his brothers are the Patta holders of the land and
lease deeds have been executed by the Panchayat in their
favour and the accused persons having failed in their legal
proceedings had decided to attack the brothers and take
forcible possession of the land and in pursuance of the said
common object all the seven accused persons duly armed
forcibly entered the land and inflicted injuries on Shivji
Ram with barchhi and jei resulting in instantaneous death and
also inflicted injuries on his younger brother Shera Ram and
the alteration made by the High Court on the conviction from
Section 302 IPC read with Section 149 IPC to one under
Section 304 Part II IPC read with Section 149 IPC is
erroneous and legally unsustainable. In support of her
submissions she relied on the decisions of this Court in
Mahesh Balmiki alias Munna vs. State of M.P. (2000)1 SCC 319
and Arun Nivalaji More vs. State of Maharashtra (2006) 12 SCC
613.
13. The prosecution has examined PW 7 Shera Ram, PW 2, Mandi
Lal, PW6 Dhuri and PW11 Balu Ram as having witnessed the
occurrence. PW7 Shera Ram and PW 11 Balu Ram are the younger
brothers of deceased Shivji Ram and PW6 Dhuri is their
sister. PW 7 Shera Ram was also injured during the
occurrence and according to him on the occurrence day namely
on 29.5.1983 at 10.30 a.m. Shivji Ram and both his brothers
were repairing/re-erecting the fencing in their Patta Land
and accused persons Bhera Ram, Sadula Ram and his sons Mohan
Ram and Surja Ram, Gordhan Ram, Nanak Ram and Chuna Ram
armed with weapons entered into Bara from south side and
started dismantling the fence and they questioned the same by
saying that they have obtained Patta from Panchayat and at
that time Bhera Ram and Surja Ram inflicted Barchhi blow on
the head of Shivji Ram as a result of which he fell down and
all the accused attacked him with their weapons and when he
intervened accused Mohan Ram inflicted barchhi blow on the
left side of his head and accused Chuna Ram inflicted jei
blow on his right leg and other accused also started beating
him whereupon his sister Dhuri came running and fell upon him
in order to protect him and the accused persons also
threatened PW 11 Balu Ram and PW2 Mangi Lal and being
frightened they stood by the side of the road and saw the
occurrence and Shivji Ram died on the spot. PW7 Shera Ram
sustained as many as 11 injuries on his person as a result of
the attack made by all the accused on him at the time of
occurrence. PW 11 Balu Ram was involved in the fencing of the
land along with his brothers and his presence in the
occurrence place cannot doubted. PW 2 Mangi Lal happened to
be with Shivji Ram in his land and he has witnessed the
occurrence. He is an independent witness. On seeing the
attack made by the accused on her brothers PW 6 Dhuri came
running and tried to protect Shera Ram by falling upon him.
The testimonies of PW2 Mangi Lal, PW6 Dhuri, PW11 Balu Ram
are natural cogent and in all material particulars
corroborated the testimony of PW7 Shera Ram. Accepting their
testimonies it is clear that during the occurrence all the
seven accused as members of unlawful assembly have inflicted
injuries with their weapons on deceased Shivji Ram and PW 7
Shera Ram.
14. Shivji Ram died of homicidal violence is established by
the medical evidence adduced in the case. PW9 Dr. Moti Lal
Mishra conducted autopsy on the body of Shivji Ram and found
on the head an incised wound of 6½” x ½” deep upto brain and
on internal examination the destruction of the elements of
the brain. He also found eight other injuries on the other
parts of the body. He issued Exh. P33 post mortem report and
expressed opinion that the death has occurred due to
destruction of the elements of brain and shock due to
excessive bleeding. In the oral testimony PW9 Dr. Moti Lal
Mishra has categorically stated that injury No.1 found on the
head was itself sufficient to cause death. There is no doubt
that Shivji Ram died of injuries sustained during the
occurrence. It is further relevant to note that PW9 Dr. Moti
Lal Mishra examined PW7 Shera Ram immediately after the
occurrence in Nokha hospital and found 11 injuries on him.
Ex.P.32 is the injury report issued by him mentioning the
injuries. According to him all the injuries are simple in
nature.
15. Telephonic information about the occurrence was given to
Nokha Police Station by some unknown person on 29.5.1983
itself and PW13 Attar Ali Khan after making Exh.P54 entry in
the Roznamcha, immediately went to the occurrence place and
found Shivji Ram lying dead and Shera Ram with injuries. He
recorded Exh.P9 statement of Shera Ram and sent him to Nokha
hospital for treatment and forwarded the statement to the
Police Station for registering the case Exh.P55 is the First
Information Report. He also seized jeis used by the accused
from the occurrence place under Exh.P34 Mazhar. There is no
delay in registering case and there is no flaw in the
investigation.
16. It is true that the accused party had land dispute with
the victim party. The Collector ordered conversion of
subject land into abadi and on the applications made by
Shivji Ram and his two brothers, Pattas were issued as
evident from P12, P16, P17, P20, P21 and P24. Accused Bhera
Ram preferred appeals against the grant of Patta to Panchayat
Samiti at the first instance and they came to be dismissed
and the revision preferred before the Collector was pending.
PW8 Sarpanch Dhura Ram and PW5 record keeper Hanuman Das have
stated so. Thus the evidence shows that the accused party
was desirous to get the subject land to themselves and were
taking legal steps to achieve it. On coming to know of the
fencing put by Shivji Ram and his brothers they were annoyed
and went there to remove the fencing. While they were
dismantling the fencing, Shivji Ram and his brothers came
there and objected to it by saying that they have obtained
Patta and a sudden quarrel erupted.
17. A fight suddenly takes place for which both parties are
more or less to be blamed and it is a combat whether with or
without weapons. It may be that one of them starts it, but
if the other had not aggravated it by his own conduct, it
would not have taken the serious turn it did. Heat of
passion requires that there must be no time for the passions
to cool down and in this case the parties have worked
themselves into a fury on account of the verbal altercation
in the beginning. Out of the 9 injuries, only injury no.1
was held to be of grievous nature, which was sufficient in
the ordinary course of nature to cause death of the deceased.
The assaults were made at random. Even the previous
altercations were verbal and not physical. The earlier
disputes over land do not appear to have assumed the
characteristics of physical combat. This goes to show that
in the heat of passion upon a sudden quarrel the accused
persons had caused injuries on the deceased. That being so
the Exception 4 to Section 300 IPC is applicable. The fact
situation bears great similarity to that in Ghapoo Yadav &
Ors. vs. State of M.P. (2003) 3 SCC 528.
18. Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above the
conclusion is irresistible that the death was caused by the
acts of the accused done with the intention of causing such
bodily injury as is likely to cause death and therefore the
offence would squarely come within the first part of Section
304 IPC and the appellants would be liable to be convicted
for the said offence. The conviction of the
appellants/accused under Section 304 Part II read with
Section 149 IPC by the High Court is liable to be set aside.
19. We are of the considered view that imposition of 7
years rigorous imprisonment on each of the appellants for the
conviction under Section 304 Part I IPC would meet the ends of
justice. We sustain the other conviction and sentences
imposed on the appellants. We are also of the view that the
appellants are not entitled for release on probation.
20. In the result Criminal Appeal No.1990 of 2010, 1991
of 2010 and 1992 of 2010 preferred by the State of Rajasthan
against the accused persons Nanak Ram, Mohan Ram and Surja Ram
are partly allowed and their conviction for the offence under
Section 304 Part II IPC read with Section 149 IPC and the
sentences of 5 years rigorous imprisonment each are set aside
and instead they are convicted for the offence under Section
304 Part I read with Section 149 IPC and sentenced to undergo
seven years rigorous imprisonment each. All other convictions
and sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011
are dismissed.
…………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
February 26, 2014.
